Bitcoin and ether shouldn’t be regulated like stocks and bonds, a top SEC official says

Jay Clayton is chairman of U.S. Securities and Exchange Commission. (Yuri Gripas/Bloomberg)

Two of the world’s biggest virtual currencies need not be regulated like stocks and bonds, a top official at the Securities and Exchange Commission said Thursday, putting to rest months of uncertainty about how the financial regulator views Bitcoin and ether, the cryptocurrency behind Ethereum.

Speaking at an industry conference in San Francisco, William Hinman, the SEC’s director of corporate finance, said the two top cryptocurrencies don’t meet the criteria for regulation that the agency typically applies to traditional securities.

“Based on my understanding of the present state of ether, the Ethereum network and its decentralized structure, current offers and sales of ether are not securities transactions,” Hinman said.

Hinman’s remarks suggest that, unlike companies, which are required to educate stock investors about the health of their businesses, the developers behind Bitcoin and ether face no such obligations. The basis for this conclusion, Hinman said, lies in the fact that Bitcoin and ether are developed diffusely, by many unaffiliated people, rather than by a single, centralized entity such as a corporation.

“As a network becomes truly decentralized, the ability to identify an issuer or promoter to make the requisite disclosures becomes difficult and less meaningful,” Hinman said. “As with Bitcoin, applying the disclosure regime of the federal securities laws to current transactions in ether would seem to add little value.”

The speech was seen as a victory by cryptocurrency advocates who have argued that applying securities regulation to a novel technology could inhibit its growth. Minutes after Hinman began speaking, the price of Bitcoin spiked by nearly 3 percent, according to Coinmarketcap.com. The price of ether surged more than 9 percent.

“We are thrilled to see [the SEC] take a strong pro-innovation approach to this nascent technology,” said Jerry Brito, executive director of the Coin Center, a Washington think tank and lobbying organization dedicated to cryptocurrencies.

The regulatory status of cryptocurrencies has come into question as numerous cryptocurrency projects have sought funding with so-called initial coin offerings, an approach some have compared to initial public offerings of corporate stock. Whether investors were receiving adequate disclosures — or perhaps being lured into scams — became a major focus of regulators such as the SEC in recent months.

In May, state securities regulators announced a nationwide crackdown on investment schemes accused of misleading or defrauding consumers. Dozens of probes into initial coin offerings (ICOs) and other get-rich-quick promises led to cease-and-desist letters from the state regulators. Meanwhile, warnings from top SEC officials of the potential hazards of ICOs prompted analysts to wonder whether a wider reckoning for cryptocurrency was coming.

On Thursday, Reuters reported, the U.S. Commodity Futures Trading Commission asked a federal judge to rule that the virtual currency My Big Coin is a commodity subject to the regulator’s oversight. Reuters said that the lawsuit filed against technology entrepreneur Randall Crater and My Big Coin Pay could determine to what extent the CFTC can regulate cryptocurrency frauds.

For the SEC not to regulate Bitcoin and ether could create some risks for investors, said David Sirignano, a partner at the law firm Morgan Lewis.

“Buying into a platform that does not provide [securities] disclosures and is not being treated as a security,” he said, “they not only don’t get the benefit of those disclosures, but they also do not get the benefit of some of the rights that securities laws afford investors, including the right to rescind their purchase if they were misled or if it was improperly issued.”

The SEC’s announcement Thursday is likely to open up new questions for cryptocurrency entrepreneurs, said Gary Gensler, the former chairman of the Commodities Futures Trading Commission. “When is something that waddles like a duck and quacks like a duck and thus regulated like a duck no longer waddle and quack sufficiently that it doesn’t need to be regulated like a duck any longer?” he said.

In many cases, but not all, companies that handle cryptocurrencies comply with tax, banking and other regulations that aim to protect consumers. Securities laws aim to add an additional layer of safety beyond ordinary consumer protection law, analysts say.

Although Bitcoin and ether do not appear to warrant securities regulation today, Hinman said, that could change in the future. And the SEC’s analysis on Thursday did not address other cryptocurrencies that the agency may decide ought to be regulated as securities.